Tuesday, April 26, 2011

Addressing a Few Red Herrings (update)

According to “Prop 8 Supporters Contest Ruling On Grounds Judge Has Same-Sex Partner”, it appears that opponents of same-sex marriage in California have asked the United States District Court Judge who presided over the challenge to Prop 8 to recuse himself (and vacate his judgment) because he is gay and is in a long-term relationship. In light of this, I thought it appropriate to revisit a portion of my post “Addressing a Few Red Herrings,” written in August 2008 (shortly after Judge Walker issued his ruling on Prop 8):

Also, promptly following Judge Walker’s decision yesterday, some on the right (hey there FOX News!) started talking about the Judge’s bias because he is gay. This suggestion is not just wrong; it is patently offensive.

First, I note that those alleging bias against Judge Walker were conspicuously silent when another federal judge with extensive stock holdings in the oil industry refused to recuse himself before considering the Obama administration’s ban on offshore drilling. Those same people were silent just a few days ago when another federal judge failed to recuse himself from hearing Virginia’s lawsuit against the new health care reform legislation even though he has financial ties to Virginia’s Attorney General, the lead plaintiff in the case. And those sorts of conflicts-of-interest are prohibited by canons of judicial ethics.

More importantly, ask yourself this: Why is it that when it comes to litigation involving social issues, straight, Anglo-Protestant white males are never seen as being biased, but a judge who is black or Jewish or female or gay is biased, often for no other reason that the fact that the judge is black or Jewish or female or gay?

Or think of it this way: Must every woman judge recuse herself from a rape case? Must every Jewish judge recuse himself from a case involving church-state issues? Must every Hispanic judge recuse himself from an immigration case? Must a black judge recuse himself from every lawsuit alleging racial discrimination? And with your answer to that last query in mind, must every white judge recuse himself from a case alleging racial discrimination if one of the parties is … um … white? And, by all of that reasoning, shouldn’t any straight judge have been forced to recuse himself precisely because he wasn’t gay?

Those who argue bias of this sort are either so blinded by their own bias and bigotry or simply cannot recognize that, in order for our system to work at all, we must all have faith in the impartiality of our judiciary. That a judge disagrees with us doesn’t mean bias; it means that judge judges a particular issue differently tha[n] you or I might. It doesn’t mean bias. But if we start seeing bias in every judge solely on the basis of that judge’s color or religion or DNA, then it won’t be long before our judicial system becomes a joke and the respect for the rule of law on which the foundations of our country are supported will rot away.

One final point on this issue of bias, specifically with regard to Judge Walker: Have you noted that those who claim that Judge Walker is biased because he is gay have not bothered to mention that Judge Walker was nominated by President Reagan and then again by President George H.W. Bush or that during Judge Walker’s nomination hearings, he was opposed by gay rights groups? Hmm. Does that weigh upon the question of any perceived bias?

Going back to the new filing asking Judge Walker to recuse himself, there was one quote in the article that particularly caught my attention:

The "Yes On 8" campaign also emphasized that it's not that they'd object to every gay or lesbian judge from presiding over the case -- only those that may want to get married one day.

Let’s tease this claim out for a moment. If I understand the argument of the “Yes On 8” campaign, then I guess that not all women should be barred from hearing abortion cases, only women who might contemplate an abortion some day. Not all African-Americans (or any other minority group) should be barred from hearing race discrimination cases, only those members of the minority group that might someday want to be treated equally. Not all judges should recuse themselves before hearing a case involving a business dispute, only those judges who might someday want to buy a product or stock from one of the parties in that dispute (i.e., if Walmart is a party, only judges who never intend to shop at Walmart should be allowed to hear the case). Certainly judges who might someday want to exercise their right to vote shouldn’t be allowed to hear cases dealing with … um … well … anything that elected officials might have an involvement in … like passing laws, for example. I don’t even want to contemplate the thought of a judge who might someday want to run for elected office (like, say, state judge). And of course, no judge should be allowed to hear a case on healthcare reform if that judge might someday visit a doctor or buy health insurance or be eligible for Medicare. Finally, I presume that the judge who ruled yesterday against the NFL lockout must not ever intend to watch or attend a football game.

And back to the case at issue. I presume that the “Yes On 8” campaign would agree that a straight judge shouldn’t be eligible to hear the case because — according to opponents of same-sex marriage — permitting same-sex marriage will “destroy the institution of marriage”. Thus, that straight judge shouldn’t be allowed to hear the case because he (or she) probably wouldn’t want his or her marriage to be “destroyed”. That certainly seems to be as much or more of an impediment to justice as the fact that Judge Walker might someday want to get married.

Oh, and one more thing on that point: If marriage was that important to Judge Walker, then isn’t it likely that he and his partner would have gotten married during the period that same-sex marriage was legal in California?

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